HIGHLIGHTS

Petition filed challenged the amendment to the Act, which effectively enabled private companies to make use of Aadhaar data

it has been prayed that the Supreme Court strike down the Amendment Act, as well as the Pricing Regulations as ultra vires, unconstitutional, null and void

The Supreme Court today, November 22, 2019 agreed to hear the petition challenging the amendment to the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, which allows private entities to use Aadhaar data.

The petition filed by retired Army Officer SG Vombatkere and human rights activist Bezwada Wilson in August challenged the amendment to the Act, which effectively enabled private companies to make use of Aadhaar data.

The Bench of Chief Justice of India SA Bobde and Justice BR Gavai issued notice in the petition and tagged it along with a petition filed earlier which had challenged the Ordinance on the same.

The Amendment, and previously the Ordinance, had effectively reversed the effect of the Supreme Court's judgment which had struck down Section 57 of the Aadhaar Act. The erstwhile Section 57 authorised the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person.

Vombatkere and Wilson were also petitioners in the original challenge to the Aadhaar scheme before the Supreme Court. After the Court delivered its judgment in September, they had filed a review petition challenging the same.

In the present petition, the Aadhaar (And Other Laws) Amendment Act, 2019 and the the Aadhaar (Pricing of Aadhaar Authentication Services) Regulations, 2019 have been challenged.

Apart from violating the fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India, the Amendment Act imperils national security and the financial integrity of the country, the petition contends.

Also under challenge is Section 2(3) of the Aadhaar Pricing Regulations 2019, which, according to the petitioners, demonstrates that the government is exercising coercion on enrolment registrars to increase the number of enrolments by setting enrolment targets and levying charges on entities not achieving those targets.

It is pointed out that the Supreme Court had upheld the Aadhaar scheme only to the extent of disbursal of subsidies, benefits and services, and for use under Section 139AA of the Income Tax Act. It is claimed that the Amendment Act violates the Supreme Court judgment by opening up the scheme to private entities. The petition states,

"Sections 6, 26 and 27 of the impugned Act effectively restore the offending provisions that were struck down as unconstitutional by the Supreme Court. This finding of unconstitutionality on account of possibility of surveillance will extend to voluntary use and authentication, as presently contemplated under the impugned Act."

The petition cites newspaper reports on instances of Aadhaar data breaches to state:

"The consequence of expanding the use of Aadhaar to private entities is the creation of federated databases which compromises peoples’ fundamental right to privacy."

Among the provisions of the Amendment Act under challenge is Section 6, which introduces a new Section 4(7) to the Act. Under this section, it is claimed, Parliament can make Aadhaar authentication mandatory for any purpose. This goes against the grain of the Supreme Court's ruling that Aadhaar be made voluntary for all other purposes.

Thus, it has been prayed that the Supreme Court strike down the Amendment Act, as well as the Pricing Regulations as ultra vires, unconstitutional, null and void.

In the alternative, it has been prayed that specific provisions be struck down, and that private entities which have access to the database ensure that Aadhaar numbers and allied data is not stored by them.

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